What Difference Does It Make? Enforcing the Law

August 16, 2013

President Obama believes that as president, he doesn’t have to enforce the law.  More specifically, he can selectively enforce parts of laws only (e.g. immigration law), delay parts of laws (e.g. Affordable Care Act), provide waivers or exceptions to “friends” (e.g. No Child Left Behind, ACA) or simply ignore the law (e.g. Internet gaming laws, Controlled Substance laws).  Most recently, the courts noted the President’s attempts to delay or negate legal action mandated by the Nuclear Waste Policy Act.  The courts found that the President does not have the legal right to NOT enforce laws he doesn’t like.

Judge Kavanaugh explains:

The Framers’ decision to give the President responsibility for the executive power and to take care that the laws be faithfully executed was not just about the lines on the Executive Branch organizational chart. The Constitution’s Framers sought a national government that would be more effective than under the Articles of Confederation (especially in maintaining national security, facilitating economic growth, and raising necessary revenue) and a national government that would be more accountable to the people and more protective of liberty than under the rule of King George III. The Framers were particularly cognizant, moreover, of the link between accountability of officials in the Legislative and Executive Branches and individual liberty. The Framers designed our constitutional structure with the idea that unaccountable power is inconsistent with individual liberty. “The Framers created a structure in which ‘a dependence on the people’ would be the ‘primary control on the government.’” Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3157 (2010) (quoting THE FEDERALIST NO. 51 (Madison)) (alteration omitted).

The President is dependent on the people for election and re-election, but the officers of agencies in the Executive 4 Branch are not. Presidential control of those agencies thus helps maintain democratic accountability and thereby ensure the people’s liberty. See id; see also Bond v. United States, No. 09-1227, slip op. at 10 (U.S. June 16, 2011) (“[T]he dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well.”); Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring) (“Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.”); Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting) (“The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.”).

–          Judge Brett Kavanaugh, In re: Aiken County, 2013

If the President ignores the will of the people by NOT enforcing the laws they passed, then he is violating not only his sworn oath to uphold the Constitution, but violating the individual liberties of each citizen affected by those laws.


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